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03/27/2018

Greg Weiner on Judicial Impeachment
Michael Ramsey

At Liberty Law Bog, Greg Weiner: Restoring Judicial Impeachment.  From the introduction:

In March 1804, the House of Representatives did something for the first and, sadly, last time: It impeached a justice of the Supreme Court for abusing the office of a judge. The high-Federalist Samuel Chase was acquitted by a Jeffersonian-dominated Senate, setting a precedent that a judge should not be impeached for his or her rulings. It is a precedent that should be, as it were, reversed.

Mark Pulliam has wisely counseled that conservatives will rue an escalating war of judicial impeachment, and that, regardless, the device requires more institutional assertion and judgment than Congress can reasonably be said currently to possess. James R. Rogers similarly argues that Congress has ample weapons short of impeachment to control judges.

Yet the power of these subordinate weapons is diminished by the dismemberment of the ultimate one. Put otherwise, the problem with the untouchability of judges is not that some of them should be impeached but rather than all of them know it will never happen. An impeachment and removal now and then, if only for public morale, would have the effect not just of punishing an individual judge — and surely there are deserving candidates over the course of time — but also of reminding all the others that they are ultimately subject to the political branches.

On the original design:

[The Chase impeachment] is in fact exactly how the constitutional system should work. Publius declared as much in Federalist 81: The impeachability of judges was “alone a complete security” against their abuse. Knowing of that threat, judges would never engage in “a series of deliberate usurpations on the authority of the legislature….” James Madison likewise wrote that judges’ “amenability to the Legislative tribunal in the form of impeachment” was an available means by which they could be “kept or reduced within the paths of duty….”

(Thanks to Mark Pulliam for the pointer).